Kenya’s Great Constitutional Struggle Continues Apace

When the Supreme Court of Kenya made its ruling annulling the August 8, 2017 Presidential Election, a new-high water mark was reached in the constitutional development of the country.

Observers and analysts scanned the horizon in efforts to find out whether there had ever been a precedent for such judicial intervention at that level anywhere in Africa, and came up with nothing quite like the decision made by Chief Justice David Maraga and his colleagues on September 1.

The celebrations and protests that followed that historic decision have to be viewed in the light of a long and assiduous struggle between Kenya’s constitutional reformers and elements that have for a long time looked to grimly hold onto the old order under which the Executive held sway over other branches of the government, the Judiciary and the Legislature.

THE ‘YOUNG TURKS’

It comes down to the grim battle waged by a dynamic section of civil society for a new constitutional order that raged for a couple of decades. I look at the now greying, balding and progressively wrinkled heads of some people in Nairobi and recall fresher looking ones of the same people some thirty years ago. Then they would be seen braving police batons, being bundled into military trucks or standing defiantly before judges and magistrates to answer trumped-up charges of sedition and treason.

These are the people a prominent Nairobi scribe dubbed the ‘Young Turks’ agitating against the totalitarian regime of Daniel arap Moi. That term may have been used then in a derogatory manner, but today it may be viewed as a fitting comparison with the slow unraveling of the Ottoman Empire and the birth pangs of the Turkish Republic in the early years of the 20th century.

The promulgation of the Constitution of the Republic of Kenya on August 27, 2010 was the culmination of that struggle in which many young Kenyans paid dearly, some with their lives. But the struggle did not end with that promulgation; rather, this was the beginning of a new and more intricate process of interpretation and implementation, wherein the old contending parties crossed swords once again.

The promulgation of the Constitution of the Republic of Kenya on August 27, 2010 was the culmination of that struggle in which many young Kenyans paid dearly, some with their lives.

In many instances, for the casual observer, it would seem that there has remained a rearguard attempt to empty the new constitution of aspects of its most substantive provisions, making implementation slow and laborious.

Perhaps this was to be expected, given the historical practice in which the old colonial power structures and relationships, only this time manned by African faces, were essentially maintained through constitutions handed down to us, rather like tablets from the mount, from Lancaster or Marlborough. Or, as in Kenya’s case, through amendments to the constitutions negotiated in such places.

The neocolonial order thus established engendered the infamous Big Man syndrome in which rulers, rather than leaders, lorded it over their people without any limits to their powers. The rulers circumscribed political spaces, infringed on individual freedoms and curtailed economic opportunities for those who rubbed them the wrong way. The rulers became the be-all and end-all.

THE BOMAS EXPERIENCE

The erstwhile single-party dispensation became emblematic of this rule, but even when this system was formally done away with in the early 1990s, its vestiges lingered on, and all too often practice went counter to what theory stated. The DNA of the one-party arrangement, with its concentration of political power in the hands of one man and a few acolytes, died very hard indeed.

For the pro-democracy activists I have alluded to above, this had to end, and their steadfastness eventually paid off. They had to be wary of, and resist against all attempts to hijack and water down the constitutional movement through state-instigated ruses and bogus proposals which looked to give away token concessions while preserving the essence of an oppressive governance setup.

The resounding response given to these attempts by the so-called ‘Bomas of Kenya’ process was astounding. Many women and men from all over the country mobilized themselves and resources to come to Nairobi to see the constitutional process through. This was an independent, non-governmental movement of the Kenya civil society, with no sitting allowances, no vehicles, and hardly a place to spend the night. That spirit of voluntarism and sacrifice was crucial to the successful conclusion of that phase of the struggle.

Compared to the ‘Bomas’ experience, Tanzania’s feeble efforts at constitution making come across as laughable.

One cannot overemphasize the importance of this spirit of voluntarism. Compared to the ‘Bomas’ experience, Tanzania’s feeble efforts at constitution making come across as laughable.

When President Jakaya Kikwete announced his intention to write a new constitution at the end of 2010, many views were voiced as to why he had made that decision. Constitution making was not one of the priorities that his party, the ruling CCM, had included in its manifesto for the election which had just ended, and it was well known that the call for a new constitution was the battle-cry of the main opposition party, Chadema.

That Kikwete decided to embrace an opposition platform in his second and final term was put down to political opportunism and a desire to steal the opposition’s thunder by appropriating a cause which appeared to be popular with the populace in the just ended election. To carry out his wish, Kikwete chose respected lawyer and former Attorney General Joseph Warioba to head his constitution review team.

However, after two years of assiduous work during which Warioba’s team crisscrossed the country, carrying out town-hall style meetings and gathering people’s views, a process that cost billions of shillings, Kikwete actually scuttled the work he had himself commissioned. Basically, he lacked the strength to rein in his party’s ultra-conservatives to make them support Warioba’s draft.

That was the critical difference between the Tanzanian experience and the Kenyan one, in that whereas the former was predicated on the will, strength and determination of the head of state, the latter draw its strength from civil society and the two decades of bitter struggle that had mobilized a good part of the Kenyan people.

DIFFICULT IMPLEMENTATION

With Kikwete’s dismal failure, the whole constitutional project fell through and faced little chance of resuscitation under his successor, John Magufuli who has given the quest for a new constitution hardly a thought, preferring instead to rule by fiat. For the time being, the idea of constitutional reform in Tanzania is a dead letter at the same time as the struggle for implementation continues apace in Kenya.

The struggle for implementation marks another milestone in the struggle for the same conservative forces of the old order who have shown their willingness and ability to turn back the hands of time. This has been in evidence already and it is not difficult to see why. To paraphrase Professor Yash Ghai speaking in Arusha a couple of years ago, bad constitutions favoured by state authorities are easier to implement than progressive constitutions delivered by the people.

To paraphrase Professor Yash Ghai speaking in Arusha a couple of years ago, bad constitutions favoured by state authorities are easier to implement than progressive constitutions delivered by the people.

The logic here is that there always will be at least two major contenders in this kind of tug of war: those who want to maintain the status quo and those who want to destroy it. The former can be traced to the changes to the Independence constitution which put enormous powers in the hands of the Executive, effectively extending quasi-colonial rule into the Independence era. The latter is on the side of progress, always looking to improve on what is, knowing that there is no limit to what can be improved on.

Since the Magna Carta (1215), recorded history recognizes this protracted argument between reformers and conservatives, the touchstone being what powers shall be taken from the rulers to be given to larger groups of citizens. History teaches us that the resultant victories scored by popular causes have not necessarily been linear; there have been frequent reversals in every case and situation considered, but generally, at global level it may be accepted that the trend has been northward.

People, and peoples, will always aspire to greater political space in which to evolve greater societal and personal autonomy which makes self-expression more real and more enjoyable. This necessarily means the dilution of state power and the decentralization of the state with a view to transferring real power to local structures where power is tangible for people who live there.

The Kenyan model, which has now delivered the second election under the new constitution, promises just that. There have of course been hiccups, for the reasons I advance above, but also because of the novelty of the experience. It will take time and a few more elections to have a properly lubricated system that works with minimum faults.

A good constitution has never been the panacea for all ills. A good constitution is but a document, whose life depends on the actions of men and women of good will and great courage to put into practice. Individuals in electoral mechanisms and processes do not go to constitutions to acquire integrity; rather they come to these processes armed with their backgrounds, education, socialization, upbringing and prejudices.

A good constitution is but a document, whose life depends on the actions of men and women of good will and great courage to put into practice.

When these attributes combine to defeat the cause of justice and fairness in any contest such as an election, it becomes necessary for the judicial arbiters to adjudicate the issue. Which is what the Supreme Court did on September 1. The arguments deployed by both the majority on the Bench as well as the dissenting minority had their merits, and will provide invaluable judicial material for experts to mull over for a long time to come.

What is important to recognize is that for the unprecedented decision of the Supreme Court to take place, it was necessary for space to have been created within the governance architecture of the Kenyan polity to allow such a step. Kenya is now that place where more and more institutions are manned by people who owe their positions to meritorious service credentials rather than to their being appendages of those in power.

This example should encourage other countries in the region to learn from our colleagues and together advance democratic governance in the East African Community.

By Jenerali UlimwenguJenerali Ulimwengu is chairman of the board of the Raia Mwema newspaper and an advocate of the High Court in Dar es Salaam